?7.94 LOS ANGELES COUNTY DISTRICT OFFICE ?a BUREAU OF FRAUD AND CORRUPTION PROSECUTIONS JUSTICE SYSTEM INTEGRITY DIVISION II) *7 STEVE COOLEY District Attorney JANICE L. a Director JACQUELYN LACEY Chief Deputy District Attorney PATRICK R. DIXON Assistant District Attorney I, F?a 0r us June 7, 2012 Chief David S. Keetle Pomona Pclice Department 490 W. Mission Blvd, Pomona, California 91766 Captain David Smith Homicide Bureau Los Angeles County Sheriff?s Department 5747 Rickenbacker Road Commerce, California 90040 Re: 13.1.13. File 11-0663 LASD. File 011-001 1231994313 Dear Chief Keetle and Captain Smith: The Justice System Integrity Division Of the LOS Angeles County District Attorney?s Of?ce has completed its review Of the October 16, 2011, fatal shooting of Andres Avila by Pomona Police Department Of?cer Edgard Padilla. It is our conclusion that Of?cer Padilla acted in lawful self? defense of another. The District Attorney?s Command Center was noti?ed of the shooting on October 12, 2011, at 9:46 am. The District Attorney Response Team, comprised of Deputy District Attorney Deborah Escobar Delport and District Attorney Supervising Investigator Gregory Frum, responded and was given a brie?ng and a walk-threugh of the scene. The following analysis is based on reports prepared by the Pomona Police Department and Los Angeles County Sheriff?s Department (LASD), submitted to this Of?ce by LASD Sergeants Gean Okada and Gilbert Anderson, LASD, Homicide Bureau. Of?cer Padilla provided a voluntary statement which was considered as part of this analysis. FACTUAL ANALYSIS On October 16, 2011, Pomona Felice Department Corporal Scott Hess was on patrol driving a black and white marked police vehicle and in full uniform. At approximately 8:30 am, he decided to conduct a patrol check of the Pomona Inn Motel in the City of Pomona The motel is a site of Clara Shortridge Foltz Criminal Justice Center 210 West Tempte Street Los Angeles, CA 90012-3210 (2133 97443888 Fax: (213) 620-1208 Chief Keetle and Captain Smith lune 7, 2012 Page 2 of 5 reoccurring criminal activity in the city. It is located on the north side of the street and has a driveway running north through the property. There is a building on either side of the driveway with ten units on the upper and lower ?oors. The rear of the property is enclosed with a fence topped with barbed wire. As Hess reached the rear of the property, he observed a blue Chevrolet Impala backed into the northeast corner of the property facing west. The driver?s dodr was approximately one foot from the north wall of the building on the east side of the motel. Hess made a [Ham and parked perpendicular in ?ont of the Impala facing south. As Hess ran the license plate, he observed two people sleeping in the front passenger compartment. A man, later identi?ed as Andres Avila, was in the driver?s seat and a female, later identi?ed as Yvonne Huguez, was in the passenger seat. Hess exited his police vehicle and requested assistance. As Hess waited for help to arrive, Huguez opened her eyes. Huguez awakened Avila as Hess approached the driver?s door. Avila opened his door and hit the side of the motel before it could open completely. Hess stood in front of the partially opened door and asked Avila for the car keys. Avila complied. Hess engaged Avila and Huguez in conversation. Both denied that there was anything in the car that Hess should be concerned about. Avila informed Hess that he was on probation. Officer Edgard Padilla, who was also in a marked police car and in full uniform, responded to the motel. Hess, who was still standing in front of the partially opened driver?s door, asked him to remove Huguez from the car. Padilla conducted a pat down search for weapons. Meanwhile, Hess closed the driver?s door so he could walk to the other side. He reopened the door and ordered Avila to exit the vehicle. Instead of complying, Avila placed his right hand in his front right pants pocket. Hess ordered him to remove his hands. Avila ignored him and reached ?irther into his pocket and appeared to grab something. Hess noticed a large bulge and feared that Avila might be arming himself. Hess leaned into the car and grabbed Avila?s right wrist with his left hand. At the same time, he drew his service weapon and pointed it at Avila?s head. Hess again ordered him to let go of whatever he was grabbing. Avila. disregarded Hess? order and tried to pull his hand out of his pocket. At that point, Hess bolstered his service weapon and repositioned himself in order to obtain better leverage over Avila?s right hand. After completing the pat down search of Huguez, Padilla entered the front passenger?s compartment of the Impala to check for weapons. His focus was diverted to Avila, who was seated in the car, when Avila shoved his right hand into his pants pocket and formed a ?st. Padilla observed Hess attempting to gain control of Avila?s right hand. Avila appeared to gain advantage over Hess and began to remove his hand ?om the pocket. Padilla was concerned that Avila was arming himself and preparing to attack them. Padilla elected to deploy his taser and advised Hess. Padilla deployed both taser darts at Avila through the front passenger?s door and applied the electrical charge. Padilla was able to ?ght through the effects of the taser and began to exit the Impala. At the same time, Padilla observed Avila?s right hand come out of his pocket Chief Keetle and Captain Smith June 7, 2012 Page 3 of 5 holding a shiny metal object. Avila stood in the Open door facing Hess and manipulated the metal object with his right thumb as if he was opening a folding knife. Simultaneously, Avila?s right hand was moving upward, similar to a punching motion. Padilla believed that Hess? life was in imminent danger from a knife attack by Avila. Padilla armed himself with his service weapon and Warned Hess that Avila was armed with a knife. Padilla then advised Hess that he was going to ?re his service weapon and ?red at Avila through the front passenger?s door. Hess moved toward the rear of the Impala and Avila began to follow. Believing that he continued to pose a threat to Hess, Padilla again fired his weapon at Avila.1 According to Hess, Avila tried to push past him when he exited the Impala. Hess tried to pin him against the car. After hearing the taser deploy, Hess heard Padilla yell, ?He has a knife!? Simultaneously, Hess? left hand was shocked by the taser probes and he backed up to create Space between himself and Avila. While backing up, Hess heard approximately two gunshots. Hess then observed Avila throw a silver colored metal object up in the air. Both he and Avila continued to move to the rear of the impala until Avila fell to the ground. After checking Avila for weapons, Hess requested that paramedics respond to the location to assist Avila. Los Angeles County Fire Department personnel responded to the scene where Avila was pronounced dead. Statement of Yvonne Huguez Huguez had been dating Avila since February of 201 l. Avila was released ?om county jail three days earlier. He had been incarcerated since the beginning of August. The day before the shooting was the ?rst time that she had seen him since his release. That night they decided to sleep in Avila?s Chevrolet Impala which was parked at the Pomona Inn Motel.2 The next morning she was awakened to ?nd an officer standing outside of the car. The of?cer (Hess) told them to keep their hands on their lap and had Avila give him the car keys. A second of?cer (Padilla) arrived and had her get out of the car. Huguez? back was to the Impala as Padilla conducted a pat down search of her. Huguez heard Hess giving unknown commands to Avila. Padilla yelled out, ?I?m going to tase him!? She turned to see Hess pointing a gun at Avila?s head while he was still seated in the car. Avila was not complying with Hess? orders and a struggle ensued between them. Padilla deployed his taser at Avila through the opened passenger door. While struggling with Hess, Avila got out of the car. At that point, Padilla armed hirmelf with his service weapon and shot Avila through the same door. Avila was struck in the shoulder. Avila moved to the rear of the Impala where Hess was now standing. She heard a second shot then saw Avila collapse to the ground. 1 A subsequent inspection of Padilla?s service weapon determined that he fired a total of three rounds. 2 Hague: lives with her mother and siblings at the Pomona Inn. That night she and Avila decided to sleep in his car. Chief Keetle and Captain Smith June 7, 2012 Page 4 of 5 Video Footage Padilla?s vehicle was equipped with a video camera mounted to the front roof edge. It is dif?cult to see what occurred inside the car. Ross is shown removing his service weapon with his right hand and leaning in toward Avila with his left hand. Padilla is also seen leaning into the passenger seat. Hess holsters his weapon and steps back from the driver?s door. Avila begins to exit and Padilla lunges toward him from inside the car. Avila stands up in the open door and struggleswith Hess. Avila is trapped between Hess, the motel, the Impala and the open door. Avila makes a complete 360 degree turn during the struggle and at times steps up onto the door ledge. Meanwhile, Padilla can be seen pointing his left hand (taser) and right hand (service weapon) toward Avila through the front passenger compartment while Avila is struggling with Hess in the cpen door. Hess moves to the rear of the car and Avila turns toward him. Padilla points his service weapon at Avila over the roof of the car. Avila moves toward the rear of the car while trying to duck below the Impala. Padilla continues to point his service weapon toward Avila over the car?s roof. As Avila nears the trunk, Avila raises his right arm in front of his face with a bent elbow. A second later an object is seen falling to the ground to the south of the Impala?s front end. It lands out of the camera?s view in front of the east side of motel. Avila then disappears behind the Impala. Recovered Evidence A silver metal storage type container was recovered on the walkway in front of the motel room just south of the front bumper of the Impala. The container consisted of two side by side cylindrical compartments with screw on caps attached to a silver metal belt clip. One canister contained two plastic bindles of powder cocaine and the other held a small ziplock bag also containing powder cocaine. Autopsy Report Los Angeles County Deputy Medical Examiner Yulai Wang, M.D., performed an autopsy on Avila on October 19, 20] 1. Avila?s death was ascribed to multiple gunshot wounds to the left shoulder, upper left back and right forearm. The toxicology report revealed that Avila tested positive for the presence of cocaine and marijuana in his blood at the time of his death. CONCLUSION California law permits the use of deadly force in self-defense or in defense of others if it reasonably appears to the person claiming the right of self-defense or the defense of others that he actually and reasonably believed he or others were in imminent danger of great bodily injury or death. People v. Williams (1977) 75 Cal.App.3d 731; People v. Glover (1903) 141 Cal. 233; People v. Ortiz (1923) 63 Cal.App. 662. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable of?cer on the scene, rather than with the 20/20 vision of hindsight. The calculus of Chief Keetle and Captain Smith June 7, 20} 2 Page 5 of 5 reasonableness must embody allowance for the fact that police are often forced to make split? second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation. Graham v. Conner, (1989) 490 U.S. 386, 396-397. Actual danger is not necessary to justify the use of force in self-defense. If one is confronted by the appearance of danger which one believes, and a reasonable person in the same position would believe, would result in death or great bodily injury; one may act upon those circumstances. The right of self-defense is the same whether the danger is real or apparent. People v. Toledo (1948) 85 Cal.App.2d 5 77. The evidence examined in this investigation shows that at the time Avila was contacted by Corporal Hess, he was in possession of cocaine. Having just served over two months in jail, and currently on probation, Avila knew that he was going back into custody after only three days of freedom. Instead of complying with Hess? orders, he elected to reach into his pocket in an attempt to discard the drugs. Hess and Padilla were unaware of these facts. They were only aware that Avila was attempting to remove something from his pocket while ignoring commands to stop. Hess and Padilla feared that Avila was arming himself with a weapon. Padilla deployed his taser in an attempt to stop the threat. It was ineffective. When Avila removed a shiny metal object from his pocket, Padilla reasonably believed the object to be a knife. This caused Padilla to fear for the life of Corporal Hess and he responded with deadly force. We conclude that Of?cer Edgard Padilla acted in lawful self-defense of another when he used deadly force against Andres Avila. We are therefore closing our ?le and will take no further action in this manner. Very truly yours, STEVE COOLEY District Attorney DEBORAH ESCOBAR DELPORT Deputy District Attorney (213) 974-3888 c: Of?cer Edgard Padilla, #40094